Smith v. Evans et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM D. SMITH ,
Plaintiff,
V.
PAUL EVANS, et al .,
Defendants.
LOEWENG'
N DISTR
21-CV-188-LJV-MJ R
DECISION AND ORDER
This case has been referred to the undersigned by the Honorable Lawrence J.
Vilardo for the 	handling of all pre-trial 	matters. (Dkt. 	No. 29) Before the 	Court is
defendants' motion to compel discovery and request for an award of sanctions. (Dkt. No.
59) For the following reasons, defendants' motion to compel discovery is granted and
defendants' request for sanctions is denied without prejudice.
BACKGROUND
Plaintiff William Smith, proceeding pros e, commenced this action under 42 U.S.C.
§ 1983 and the Americans with Disabilities Act, 42 U.S.C. § 12112, et seq. (Dk t. Nos. 1,
15, 34) Smith alleges that during the time he was confined at the Erie County Correctional
Facility, defendants Paul Evans, Alfonso Harris, Sharade Aldinger, and Deanna Lates
denied him accommodations related to his hearing loss. 1 (Id.) Defendants Aldinger and
Harris filed answers to the second amended complaint. (Dkt. Nos. 39, 40) Defendants
Evans and Lates moved to dismiss the second amended complaint. (0kt. No. 36) The
1 Plaintiff was a prisoner confined at the Erie County Correctional Facility at the time he
commenced this lawsuit. (0kt. No. 1) He was granted in forma pauperis status on June 3, 2021.
(0kt. No . 7) On February 16, 2022, plaintiff filed a Notice of Change of Address with the Court,
indicating that he is no longer incarcerated and that he resides at 179 Freund Street, Buffa lo,
New York, 14215. (0kt. No. 31)
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District Court denied the motions to dismiss on August 14, 2023 (Dkt. No. 43), and
defendants Evans and Lates filed answers on September 11, 2023 (Dkt. Nos. 45, 46).
This Court issued a case management order on September 13, 2023, which has been
amended three times since that date upon request of defendants. (Dkt. Nos. 48, 50, 51,
53, 55, 56, 58)
The third amended case management order required the exchange of mandatory
initial disclosures, pursuant to Rule 26 of the Federal Rules of Civil Procedure, by
September 20, 2024. (Dkt. No. 58) Defendants served their initial disclosures on plaintiff
on May 14, 2024. (Dkt. No. 59-1, ,i 10; Exh. A) To date, plaintiff has not provided
defendants with his Rule 26(a) initial disclosures. (Id. at ,i 11)
On 	September 	11, 	2024, 	defendants 	served 	plaintiff with 	a 	First 	Set 	of
Interrogatories and a Notice to Produce. (Dkt. No. 59-1, ,i 10; Exh. B) That same day,
defendants also served plaintiff with a Notice of Deposition, instructing plaintiff that his
deposition was to take place at the Erie County Attorney's Office on November 13, 2024
at 10:00 a.m. 2 (Id.) Plaintiff has not responded to defendants' First Set of Interrogatories
or Notice to Produce, nor has he contacted defense counsel to request an extension of
time to do so. (Dkt. No. 59-1, ,i,i 14, 15) Further, plaintiff did not appear for his scheduled
deposition nor did he contact defense counsel prior to the scheduled deposition date to
indicate that he was unavailable. (Id. at ffll 16, 18) Plaintiff has not contacted defense
counsel since the date of his nonappearance at the deposition. (Id. at ,i 19)
2 The First Set of Interrogatories, the Notice to Produce, and the Notice of Deposition were mailed to
plaintiff at 179 Fruend Street, the address on file with the Court. (Dkt. No. 59-3) The documents were not
returned as undeliverable. (Dkt. No. 59-1, ,r 13) The enclosure letter for the Notice of Deposition indicated
that in the event plaintiff was unable to attend the deposition on the date scheduled, he should notify
defense counsel immediately. (Dkt. No. 59-3, pg. 2)
2
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Defendants ask that the 	Court compel plaintiff to 	provide 	Rule 26(a) 	initial
disclosures and responses to defendants' First Set of Interrogatories and Notice to
Produce. (Dkt. No. 59-1. 11 22) Defendants also ask that the Court require plaintiff to
appear for a deposition by a date certain. (/d.) Lastly, defendants request an award of
their costs incurred in making the instant motion to compel, and.also request an award of
sanctions in the amount of $250.00, to cover the cost of the deposition at which plaintiff
failed to appear. (/d.) The Court issued a scheduling order seeking a response from
plaintiff to the motion to compel by December 23, 2024. To date, plaintiff has not
responded to the motion to compel.
DISCUSSION
Motion to Compel
According to the Federal Rules of Civil Procedure, parties to a lawsuit "may obtain
discovery regarding any nonprivileged matter that is relevant to any party's claim or
defense and proportional to the needs of the case[.]" See Fed. R. Civ. P. 26(b)(1).
Information need not be admissible at trial in order to be discoverable. Id. Courts have
wide discretion to manage discovery. Smith v. Haag, 08-CV-6360, 2009 U.S. Dist. LEXIS
86697, at *8 (W.D.N.Y. 	Sept. 22, 2009); accord In re Subpoena Issued to Dennis
Friedman, 350 F.3d 65, 69 (2d Cir. 2003). "[P]ro se litigants, like those represented by
attorneys, are equally obligated to comply with discovery requirements under the Federal
Rules of Civil Procedure." Swinton v. Livingston Cnty., 15-CV-53, 2016 U.S. Dist. LEXIS
148370 (W.D.N.Y. Oct. 26, 2016); Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298,302
(2d Cir. 2009). See e.g., Davidson v. Goard, 215 F.R.D. 73, 77 (W.D.N.Y. 2003) ("[W]hile
prose litigants are entitled to some leeway in complying with the Federal Rules of Civil
3
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Procedure, that tolerance "does not extend to unexcused failures to comply with routine
discovery requests.").
Pursuant to Federal Rule of Civil Procedure 26, parties to a lawsuit are required to
provide certain initial information to the opposing party. See ~ed. R. Civ. P. 26(a)(1). In
addition, a party may serve on any other party 25 written interrogatories, relating to any
matter that may be inquired into pursuant to Rule 26(b). See Fed. R. Civ. P. 33(a). Each
interrogatory must be separately answered, by the party to whom it is directed, fully in
writing and under oath. See Fed. R. Civ. P. 33(b). Pursuant to Federal Rule of Civil
Procedure 34, a party may serve on any other party a request to produce documents
and/or electronically stored information, relating to any matter that may be inquired into
pursuant to Rule 26(b). See Fed. R. Civ. P. 34(a). A party to a lawsuit may also, by oral
questions, depose any person, including any other party to the lawsuit, without leave of
the court. See Fed. R. Civ. P. 30(a)(1).
Here, plaintiff has failed to provide defendants with initial disclosures pursuant to
Rule 26 and has failed to respond to defendants' interrogatories and requests to produce.
Plaintiff has not requested extensions of time to respond nor has he asserted any
objections to defendants' discovery requests. Plaintiff has also failed to appear for his
scheduled deposition. He has not contacted defense counsel to explain why he failed to
attend nor has he attempted to reschedule the deposition. Plaintiff also has not filed a
response to defendants' motion to compel as directed by the Court.
Defendants' motion to 	compel 	discovery as well 	as the taking 	of plaintiff's
deposition 	is granted. 	On or before 	May 19, 2025, 	plaintiff is ordered to provide
defendants with (1) his initial disclosures, pursuant to Rule 26 of the Federal Rules of Civil
4
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Procedure; (2) a response to defendants' First Set of Interrogatories; and (3) a response
to defendants' Notice to Produce. Plaintiff is also ordered to appear for and submit to a
deposition at a date and time chosen by defendants on or before May 30, 2025. The Court
warns plaintiff that a failure to comply with this Order may result in the imposition of certain
sanctions, including the potential dismissal of the lawsuit. The Court further warns plaintiff
that should he fail to appear for his deposition as noticed, in accordance with this Order
and the Federal Rules of Civil Procedure, he may be held in contempt of Court and/or his
lawsuit may be dismissed.
Request for Costs and Fees
If a motion to compel is granted, "the court must, after giving an opportunity to be
heard, require the party ... whose conduct necessitated the motion ... to pay the movant's
reasonable expenses incurred in making the motion, including attorney's fees. 11
See Fed.
R. Civ. P. 37(a)(5)(A). A court must not order such payment if: (i) the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery without court
action; (ii) the opposing party's nondisclosure or nonresponse was substantially justified;
or (iii) other circumstances make an award of expenses unjust. Id. Indeed, an award of
expenses under Rule 37(a)(5)(A) is mandatory unless one of the three exceptions
applies. Wager v. G4S Secure Integration, LLC, 19-CV-03547, 2021 U.S. Dist. LEXIS
16448, at *10 (S.D.N.Y. Jan 28, 2021) (citation omitted).
Defendants maintain that they "made good faith attempts to resolve this issue short
of making the instant motion to compel." (0kt. No. 59-1, 11 21) But no information is
provided as to what good faith attempts were actually made by defendants. There is no
indication in the motion to compel, or elsewhere in the record, that defense counsel
5
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attempted to contact plaintiff regarding his outstanding initial disclosures or discovery
responses, prior to filing the instant motion with the Court. There is also no evidence in
the record that defense counsel attempted to contact plaintiff after he failed to appear for
his scheduled deposition. Without sufficient proof that defendants made good faith efforts
to obtain the discovery sought without court intervention before filing the instant motion,
the Court declines to award the sanctions requested here. See Trilegiant Corp. v. Site/
Corp., 09 Civ. 6492, 2012 U.S. Dist. LEXIS 72644 (S.D.N.Y. May 22, 2012) (denying
motion for sanctions where movant did not meet and confer in good faith with opposing
party 	prior to 	filing 	a 	motion to 	compel 	discovery, 	and 	noting that Rule 	37(a)(1)
"unambiguously requires attempts at informal dispute resolution before a motion is filed.");
Valentin v. City of Rochester, 11-CV-6238, 2014 U.S. Dist. LEXIS 136891 (W.D.N.Y. Sept.
26, 2014) (denying plaintiff's "request for monetary sanctions because ... he ha[d] not
demonstrated that he attempted to resolve the discovery dispute with defendants prior to
the filing the pendent motions.").
In addition, the imposition of Rule 37(a)(5) sanctions for failure to comply with
discovery demands must be weighed in light of the full record, including a litigant's prose
status and ability to pay a monetary sanction. Alliance Indus. v. Longyear Holding, Inc.,
08-CV-490, 2010 U.S. Dist. LEXIS 108544, at *11 (W.D.N.Y. Oct. 12, 2010) (citation
omitted). See e.g., Ottoson v. SMBC Leasing & Fin., Inc., 13-CV-1521, 2021 U.S. Dist.
LEXIS 41711, at *9-11 (S.D.N.Y. Mar. 5, 2021) (finding it necessary to consider plaintiffs
prose and indigent status in evaluating whether a fee award under Rule 37(a)(5) would
be unjust); 	Smith v. 	Fischer, 	13-CV-6127, 2019 U.S. 	Dist. 	LEXIS 	168755, at *5-6
(W.D.N.Y. Sept. 30, 2019) (declining to award attorney's fees to movant upon successful
6
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motion to compel because monetary award would place undue burden on plaintiff, who
was proceeding prose and in forma pauperis). Taking into consideration all of the facts
here, including plaintiff's prose and in forma pauperis status, the Court finds that an award
of costs and fees would be unjust at this time. Should plaintiff continue to fail to comply
with his discovery obligations following entry of this Order, the issue of sanctions,
including either monetary sanctions or dismissal of the lawsuit, may be revisited.
CONCLUSION
For 	the 	foregoing 	reasons, 	defendants' 	motion 	to 	compel 	is 	granted 	and
defendants' request for monetary sanctions is denied without prejudice. {Dkt. No. 59)
On or before May 19, 2025, plaintiff is ordered to provide defendants with (1)
his initial disclosures, pursuant to Rule 26 of the Federal Rules of Civil Procedure;
(2) a response to defendants' First Set of Interrogatories; and (3) a response to
defendants' Notice to Produce. Plaintiff is also ordered to appear for and submit to
a deposition at a date and time chosen by defendants, on or before May 30, 2025.
The Court warns plaintiff that a failure to comply with this -Order may result in the
imposition of sanctions, including the potential dismissal of his lawsuit. The Court
further warns plaintiff should he fail to appear for his deposition as noticed, in
accordance with this Order and the Federal Rules of Civil Procedure, he may be
held in contempt of Court and/or his lawsuit may be dismissed. On or before May
30, 2025, defendants shall file an update as to the status of discovery, and a revised
case management order may be entered at that time.
7
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Dated:
SO ORDERED.
April 11 , 2025
Buffalo, New York
~b~~ ~~United States Magistrate Judge
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